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Legal news from Tuesday, April 5, 2011




ICC prosecutor claims to have evidence Gaddafi planned attacks on civilians
John Paul Putney on April 5, 2011 3:01 PM ET

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[JURIST] International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] on Tuesday revealed that his office has uncovered evidence that embattled Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] planned to attack civilians to forestall regime-toppling revolution. Moreno-Ocampo indicated that the plans were made in response to the conflicts in Tunisia and Egypt and included shooting civilians [NYT report]. Moreno-Ocampo wants to interview the recently defected foreign minister of Libya, Moussa Koussa, to gather more inside information on the Gaddafi government [AP report]. The prosecutor hinted at possible immunity for Koussa, who fled to London last month, but stopped short of a guarantee [Reuters report]. Gaddafi remains defiant even as several key figures have defected and NATO-led air strikes have grounded his planes.

Last Month, Moreno-Ocampo told the press that he is 100 percent certain his office will bring charges [JURIST report] against Gaddafi. Also last month, the ICC launched a probe into allegations of crimes against humanity [JURIST report] by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. Additionally, the UN appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi ordered forces to torture and abduct opponents. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi.




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Switzerland court rules Google Street View constitutes breach of privacy
Ashley Hileman on April 5, 2011 12:41 PM ET

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[JURIST] The Swiss Federal Administrative Court (FAC) [official website, in German] on Monday publicized its ruling that Google Street View constitutes a breach of privacy for the country's citizens and ordered Google [corporate website; JURIST news archive] to take extra steps to ensure adequate protection. The FAC officially ruled on the claim [media release] brought by the Swiss Data Protection Ombudsman and Public Domain (FDPIC) [official website] against Google on March 30. According to the judgment, before publishing any pictures on the web, Google must make all faces and license plates unrecognizable as well as ensure the anonymity of individuals in the vicinity of sensitive facilities. In making its decision to impose restrictions on Google's Street View, the FAC considered the interests of the public in having a visual record and the commercial interests of the defendants, but ultimately determined that these did not outweigh the rights an individual has over one's own image. Google now has the opportunity to appeal the decision to the Swiss Federal Supreme Court. The FDPIC originally brought the claim in November 2009.

Google has recently faced a number of allegations from the international community related to violating privacy laws by capturing personal data through Google Street View. Just last month, A Berlin high court ruled [JURIST report] that Google's Street View mapping service is legal in Germany. The case stems from a suit against Google, brought last year by a woman alleging that photos posted on Google Street View of herself, her family and the front of her house violated her property and privacy rights. The court held that, because the photos were taken from the street, Google did not violate her property rights. Furthermore, the court found no further violations because Germans can opt out of the service, and Google blurs faces and license plates in the posted images. The ruling, which cannot be appealed, was narrowly focused on property rights, ignoring larger data protection issues the company is currently confronting. Additionally in March, the French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google [JURIST report] 100,000 euros (USD $141,300) for violating French data privacy laws by capturing personal data through Google Street View cars, used for its Google Maps service. CNIL stated that Google was not responding to requests in a timely manner and has not stopped using the seized data. Google admitted to the collection of e-mails, passwords and other data over unsecured WiFi networks, but maintained that it was a mistake and that it did not intend to include the code which captured payload data from unsecured WiFi networks. In response to the controversy, Google grounded its Street View cars.




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Kenya urges ICC to drop post-election violence cases
Sarah Posner on April 5, 2011 12:35 PM ET

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[JURIST] Kenya has urged the International Criminal Court (ICC) [official website] to dismiss the cases [motion, PDF] against six senior Kenyan leaders accused [materials] of committing crimes against humanity and contributing to the 2007-2008 post-election violence [JURIST news archive]. Kenyan authorities last week emphasized that "the ICC's jurisdiction [is] complementary to national criminal jurisdictions" and argued that, with its new constitution and reformed judicial system, Kenyan officials are capable of prosecuting the cases domestically:
The adoption of the new Constitution and associated reforms has opened the way for Kenya to conduct its own prosecutions in Kenya for the post-election violence in respect of persons at the highest levels of authority and for the most serious crimes...The recent and current initiatives have all been designed and adopted to cure problems, or shortcomings, of the past. They demonstrate that the time is ripe for Kenya to exercise jurisdiction which the ICC should yield.
The ICC on Monday announced that its judges will review Kenya's motion [press release], but that under the Rome Statute [official website], the judges are not required to reach a decision within any specific period of time. The trial will continue while the motion is under review, with the accused leaders scheduled to appear [HJP report] before the court next week.

In December, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] identified the six suspects [JURIST report], including current Deputy Prime Minister Uhuru Muigai Kenyatta and several Ministry heads. All six are believed to have fomented violence, rape and destruction of property during the 30 days of post-election violence, but they have not yet been charged in Kenya for the alleged crimes. Last month, Moreno-Ocampo warned the six Kenyan suspects that arrests would ensue if they did not comply with the court's conditions [JURIST report]. The warning followed a summons [JURIST report] issued by the ICC earlier that month for the suspects to appear before the court on April 7 for an initial hearing. The Kenyan government also announced last month that it would challenge the admissibility of cases [JURIST report] relating to the post-election violence in the ICC, as well as the jurisdiction of the court.




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UN rights office urges Yemen to halt use of force against protesters
Maureen Cosgrove on April 5, 2011 12:11 PM ET

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[JURIST] The UN Office for the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday urged the Yemeni government to discontinue using force against peaceful protesters [UN News Centre report]. The OHCHR insisted that Yemen [BBC profile] deliver on its promise to establish a commission to inquire into recent alleged government-led killings and abuses that occurred during protests, including those that took place in the capital of Sana'a [JURIST report] in March and in Taiz [Guardian report] yesterday. Forty-five protesters were reportedly killed [Reuters report] at the anti-government rally in Sana'a, and a reported 15 protesters were killed in Taiz. The OHCHR also called on the Yemeni government to halt the targeting of marginalized minority groups.

The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. The new laws give the government greater power [AP report] to arrest and detain protesters and to censor the media. Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen since February, largely calling for Saleh to step down. Saleh has been in power since 1978 and is considered popular in Yemen and the international community. However, he and his party, the General People's Congress (GPC) have caused mounting political tensions due to attempts to remove presidential term limits [JURIST report] and expand their political power. In December, the parliament stoked outrage among opposition parties and independents when it amended the constitution [AFP report] to eliminate provisions requiring that opposition parties be represented on the high election commission. Although the government has maintained control in urban areas, the northern and southern parts of the country remain unlawful and dangerous, plagued by southern separatists groups and al Qaeda [JURIST news archive]. The protests in Yemen have been analyzed in two recent JURIST op-eds: Constitutional Enforcement in Tunisia, Yemen, and Egypt by L. Ali Khan, Professor of Law at Washburn University, and The Middle East protest movements: each with a story, all with uncertainty by Dr. Jonathan Schanzer, Vice President of Research, Foundation for Defense of Democracies [advocacy organization].




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Lawyers for convicted Vietnam rights activist allege improper trial
Matt Glenn on April 5, 2011 9:41 AM ET

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[JURIST] Lawyers for human rights lawyer and activist Cu Huy Ha Vu claimed Tuesday that the judge failed to allow key evidence at Vu's trial on charges of carrying out anti-state propaganda. The court convicted Vu [JURIST report] on Monday, sentencing him to seven years in prison followed by three years of house arrest, on the basis of interviews given to international media in which Vu advocated an end to Vietnam's one-party system and other reforms. In their complaint, Vu's lawyers claim that the judge violated Vu's rights [AP report] under Vietnamese law by not giving lawyers access to or reading for himself complete transcripts of the interviews. During the trial, one of the Vu's lawyers was ejected from the court for repeatedly asking the judge to read the full transcripts, and Vu's other three lawyers left in protest forcing Vu to defend himself. Last week, Human Rights Watch [advocacy website] called for the Vietnamese government to release Vu [press release], calling him "one of the most prominent defenders of cultural, environmental and human rights in Vietnam," On Monday, the US Department of State [official website] expressed concerns [press release] over Vu's conviction, saying it "runs counter to the Universal Declaration of Human Rights, and raises serious questions about Vietnam's commitment to rule of law and reform."

Vu is among several dissidents in Vietnam who have been convicted for anti-government activity. In January, a Vietnamese court sentenced former communist official Vi Duc Hoi to eight years in prison [JURIST report] for advocating democracy and a multi-party system. In January 2010, a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month, a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five-and-a-half years in prison for subversion.




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Federal appeals court dismisses challenge to FCC net neutrality rules
Aman Kakar on April 5, 2011 8:09 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Monday granted [order; PDF] a motion [text, PDF] by the Federal Communications Commission (FCC) [official website] to dismiss a challenge to the new net neutrality rules. Verizon and MetroPCS [corporate websites] filed an appeal challenging the new net neutrality rules [text, PDF] that allow the government to regulate Internet traffic to preserve the Internet as a free and open platform of communication. The court dismissed the appeal for improper timing because the challenged rulemaking document has yet to be published in the Federal Register and is not a licensing decision with respect to the specific parties as required by 47 CFR § 1.4(b)(1) [text]. The court said it would be subject to judicial review once it is published in the Federal Register. Verizon spokesperson Ed McFadden said that the notices of appeal were filed because the FCC's rules governing timing of appeals were unclear [Reuters report] and the company did not want to lose its right to appeal. Verizon plans to file a second appeal when the rules are published in the Federal Register.

Verizon and MetroPCS [JURIST reports] filed the challenges in January out of concern over the broad authority the new rules would grant the FCC. The FCC has long been trying to exert more control over Internet regulation. Last year, US Senator Jim DeMint (R-SC) [official website] introduced legislation [JURIST report] intended to block the FCC from implementing its National Broadband Plan [official website; materials]. The Freedom for Consumer Choice Act would remove the FCC's ability to declare the actions of a communications provider illegal unless there was a clear showing that the practice causes harm to consumers and will not be corrected by market forces. A month earlier, the FCC opened a new proceeding [JURIST report] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. A previous court ruling found that the FCC lacks the power to enforce net neutrality [JURIST report]. Net neutrality is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information.




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